HKSAR v. SONG CHANG MOO

CACC235/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 235 OF 2010

(ON APPEAL FROM DCCC NO. 1218 OF 2009)

----------------------

BETWEEN

----------------------

--------------------------

J U D G M E N T

--------------------------

Saw J (giving the judgment of the Court) :

1.  On 14 June 2010 the applicant was convicted after a trial before H.H. Judge Geiser of a charge of Conspiracy to use false instruments, contrary to sections 73, 159A and 159C of the Crimes Ordinance, Cap. 200. He was sentenced to be imprisoned for 3 years.

2.  This is his application for leave to appeal conviction and sentence. 

The prosecution case

3.  The false instruments referred to in the charge were three documents, namely :

(a)   One bank draft in the name of JP Morgan in the sum of US$2,800,000 payable to Pablita F.GO.

(b)   One bank draft in the name of JP Morgan in the sum of US$10,000,000 payable to Thomas Ho Lung.

(c)   One Letter of Confirmation in the name of JP Morgan in the sum of US$2,800,000.

4.  The charge alleged that the applicant, his co-accused and others unknown conspired to represent to the staff of JP Morgan Chase Bank in Hong Kong (“JP Morgan”) that the documents were genuine and to thereby induce them to act to their detriment.

5.  The judge found that all three documents were false instruments.  There is no challenge to that finding.  The second prosecution witness (PW2) was an officer of JP Morgan Global Security and Investigation for the Asia Pacific Region.  On 13 May 2010 she examined the three documents.  It was her evidence that the two bank drafts referred to in the charge had not been issued by JP Morgan.  The account number specified on each of the bank drafts was not a genuine account.  The Letter of Confirmation referred to in the charge had not been issued by JP Morgan.

6.  On 7 May 2010, Ms Wong Yat Ting a member of the staff of JP Morgan (“PW1”) received a telephone call from a man who identified himself as a Mr Song.  He told her that he wished to open an account with JP Morgan and to that end wished to provide her with certain documents.  She advised him to send copies of the documents to her before a meeting could be arranged.  Subsequently she received as attachments to emails a copy of a business registration certificate for a company called Golden Link Investment Development Limited (“Golden Link Investment”) together with copies of two bank drafts in the sums of US$10,000,000, US$2,800,000 and a confirmation letter.  (These being copies of the documents referred to in the charge.  The emails and attachments were in the English language.  Thereafter a meeting was arranged for 5 p.m. on 12 May 2010.  PW1 was present at that meeting together with another member of the JP Morgan staff, Gloria Yung Hiu Tong (PW4).  The applicant attended this meeting together with a Mr Sam Choi (“Mr Choi”) who interpreted for him (the applicant is a Korean national.)  The two bank drafts and Letter of Confirmation were produced.

7.  It was the evidence of PW1 that at this meeting the applicant indicated, through the interpretation of Mr Choi, that he wanted to open a bank account in the name Golden Link Investment and to deposit the two bank drafts in the sums of US$2,800,000 and US$10,000,000 respectively into that account.  This was also the evidence of PW4 who in addition said that she had been shown the business registration certificate of Golden Link Investment and had been told by the applicant that he was that company’s Chief Executive Officer.

8.  It was PW1’s evidence that she and her colleague explained to the applicant that as the payees of the two bank drafts were not Golden Link Investment they could not be paid into any account opened in that name.  The bank drafts had to be paid into an account in the name of the payee.  Once the two bank drafts were paid into the accounts of the respective payees then the funds could then be transferred to an account opened in the name of Golden Link Investment.  These discussions took place through the interpretation of Mr Choi.  The meeting ended on that note.

9.  On the evening of 12 July 2009 some two months later, the applicant was arrested at the Hong Kong International Airport.  He was apparently about to board a flight to Switzerland. 

10.  In a video recorded interview conducted on 13 July 2009 during which a English/Korean interpreter was used, the applicant explained that he had been a businessman for the past 17 years and was in the process of opening a new company in Hong Kong and Switzerland.  The company in Hong Kong was Golden Link Investment.  It was established in January 2008 and was intended to attract investors to develop a business and factory to market motor vehicle air filters and other products.  He told the police that at that stage he was intent upon attracting prospective investors from all over the world.  He explained something of his overall business plan and how this related to the two JP Morgan bank drafts.  

11.  He confirmed that the two bank drafts and confirmation letter had been sent as email attachments to JP Morgan as requested.  It was after this that he and Mr Choi went to JP Morgan on 12 May 2009.  Mr Choi was to interpret for him as his command of the English language was limited.  He confirmed that the purpose of submitting these documents to JP Morgan was “obtain the funds for investment”.

12.  He explained that the two bank drafts were given to him by others to invest in his new business.  In the case of the US$10,000,000 draft it was given to him by Thomas Ho Lung the named beneficiary of the draft.  As for the the US$2,800,000 bank draft that was given to him by a Sylvia Moncata in Manila, the Philippines.  He did not know Pablita F.GO the named beneficiary but Sylvia Moncata was he believed, a businesswoman from a wealthy and well connected family in the Philippines.

13.  When he was told in the course of the video recorded interview that the documents were false and that it was an offence to submit false documents to a bank in Hong Kong he explained that he had himself some suspicions about the bank drafts and that is why he wanted to seek confirmation of their authenticity from the bank whhich had issued them.  (He said his suspicions were aroused because he believed that bank officers would write their staff numbers on such drafts).  He said that the only way to determine whether or not the two bank drafts were genuine was to present them to JP Morgan.  When at the meeting at JP Morgan on 12 May 2009 he was told that the names of the beneficiaries could not be changed he in effect gave up on the whole idea.  He was heading back to Switzerland when he was arrested.

The defence case

14.  Neither the applicant or his co-accused gave evidence in the trial.  The defence case as put in cross-examination was essentially the same as the account given to the police in the video-recorded interview, namely that it was his intention was to pay the two bank drafts into an account to be opened in the name of Golden Link Investment if he was able, to verify their authenticity. 

15.  Mr Choi the interpreter who was present at the meeting on 12 May 2009 did not give evidence.  It emerged in the course of the cross-examination of PW1 and PW4 that all relevant communication with the applicant at the meeting on 12 May 2009 was through the interpretation of Mr Choi who spoke to the applicant in Korea.  PW4’s said that she had spoken directly to the applicant in English but this conversation was limited mainly to his personal background.  It was the evidence of PW1 and PW4 that the authenticity of the three documents produced at the meeting was not discussed at this meeting as that was a matter for JP Morgan’s compliance department. 

16.  The judge concluded that when the applicant together with Mr Choi attended the meeting at JP Morgan on 12 May 2009 he knew that the three documents were false instruments and that it was his intention to open an account at JP Morgan using them.  

The application

17.  Ground 1 can be summarized thus.  The judge when concluding that the applicant knew that the documents were false and rejecting the defence case that it was the applicant’s intention to ask JP Morgan to verify the authenticity of the two bank drafts, fell into error inasmuch as he relied upon the evidence of PW1 and PW4 as to what the applicant did or more importantly did not say in the course of their meeting on 12 May 2009.  Mr Egan, on behalf of the applicant, submits that their evidence in the absence of evidence from the interpreter Mr Choi that he had interpreted accurately the conversations that took place was hearsay and prima facie inadmissible.

Discussion

18.  Fundamental to the judges’ conclusion that the applicant was a party to a criminal conspiracy was his conclusion that the applicant knew that the three documents he presented to the staff at JP Morgan were false.  It is this conclusion and the basis upon which it was reached that has given us cause for concern.  The judge said at paragraphs 29-30 of his reasons for verdict :

“29. As to D1’s knowledge regarding the falsity of these documents I have absolutely no doubt. It is worth noting that with respect to Exhibit P3 the bank draft for US$2.8 million there is no date on this document. I find it to be inconceivable that the 1^st defendant, an experienced businessman on his own account, could ever have believed this document to be valid.

30.  In addition to this I do not accept the defendant’s explanation given in his video interview and indeed put forward on his behalf in the course of this trial that purpose of the visit to JP Morgan on 12 May 2009 was to simply verify the genuineness of the two bank drafts.  Both PW1 and PW4 the two bank officials who attended the 1^st defendant rejected that suggestion as do.  One has only to look at Exhibit P1 the email correspondence between D1 and PW9 which makes it quite clear that the intention of D1 was to open an account with JP Morgan.”

19.  The judge accepted the evidence of PW1 and PW4 that there was no request to verify those documents at the meeting of 12 May 2009.  Their evidence of what was said by the applicant in that meeting was prima facie hearsay in the absence of evidence from the interpreter that he had faithfully interpreted that said by one to the other and vice versa see R v Attard (1958) Cr.App.R. 90, Attorney General v Prung Van Toan and others [1992] 1 HKCLR 56, 64.  

20.  The judge made no reference to the fact that the interpreter Mr Choi did not give evidence and that all discussions relating to the documents and the applicant’s intentions were concluded through his interpretation.  This is somewhat surprising given that in written submissions made on behalf of the applicant at the close of the prosecution’s case it was said para.10 :

“Without having Choi’s evidence. It is impossible for the prosecution to prove anything against D1 for attending such meeting.”

In written submissions made on his behalf at the conclusion of the trial it was said para.6 :

“In the absence of Choi’s evidence, it is impossible for the court to be sure that Choi had accurately expressed the real intention of the 1^st defendant when the documents were presented to PW1 and PW4. Moreover it is also impossible for the court to be sure that Choi had accurately translated the response of PW1 and PW4 to the defendant.”

21.  The judge was in these circumstances alerted to the fact that the evidence of PW1 and PW4 was challenged.  This was a matter that the judge was required to address but did not.  The applicant’s counsel was in effect directing the judges’ attention to the fact that the account given by PW1 and PW4 of what the applicant had said at that meeting was hearsay.  The judge relied on this evidence when he rejected the account given by the applicant in his video recorded interview.  He was in error in this regard.

22.  There are other errors in the judge’s reasoning.  The fact that there was no date on the US2,800,000 draft had to be considered in the light of the fact that the applicant himself had told the police he had some reservations about the document’s authenticity and that was why he wished to have them verified.  The applicant’s video-recorded interview when read as a whole makes it clear that the applicant wished to open a bank account in the name of Golden Link Investment and to deposit the two bank drafts into it, if the bank drafts were authentic.  He did not assert in that interview that he went to JP Morgan to simply verify the two bank drafts as the judge stated in his reasons for verdict.  Throughout the interview his position was that if they were verified then they could be deposited into that account. 

23.  The judge was alerted to this in the written submissions at the conclusion of the trial.  It was said para.4 :

“As it was stated in the Record of Interview of the 1^st defendant (P.25) the purpose of the 1^st defendant to have that meeting was to verify the relevant documents and to open an account for Golden Link and also enquiry was made on how to transfer the money subjected to the authenticity of the documents was verified.”

24.  The judge relied in addition upon the correspondence between the applicant and PW1 prior to the meeting of 12 May 2009 wherein emails refer to a request to open an account in the name of Golden Link Investment and to deposit to that account the two bank drafts.  Whilst it is correct to say that there was no mention in that correspondence that the two bank drafts were to be verified the fact is that the judge failed to appreciate what it was that the applicant was saying to the police in his video recorded interview; namely that he would deposit the bank drafts into the Golden Link Investment account if they were authentic.  This impacts on the weight to be given to these emails. The email exchanges whilst they confirm an intention to open an account with JP Morgan when read together with the video recorded interview were consistent with, not contrary to, the applicant’s case.

25.  Mr Egan further submits that absent interpretation of the emails and the three false documents, the judge was in error to rely upon them.  We do not agree.  The email exchanges and the three false documents were shown to and addressed by the applicant in the course in his video recorded interview through the interpretation of a Korean/English interpreter.  It was no part of the applicant’s case both in the video recorded interview and the trial that he was not aware of the contents of those documents.  There was no challenge to the admissibility of the video recorded interview, the emails or the three false documents.  There was no suggestion that they were required to be translated for the purpose of the trial.  In these circumstances it was not necessary to have the Korean/English interpreter who took part in the video recorded interview called in the prosecution case. 

26.  The basis upon which the judge concluded that the applicant was aware that the documents were false is flawed and that conclusion cannot stand.  Ground 1 of the perfected grounds of appeal succeeds.

27.  Ground 2 complains that the judge when he concluded that the applicant knew that the two bank drafts were false took into account his possession of other false documents which had been scanned into his computer after the meeting of 12 May 2009.  

28.  This ground of appeal can be dealt with succinctly.

29.  When the applicant was arrested on 12 July 2009 there was in his luggage was a lap top computer.  An analysis of the contents of that computer revealed amongst other things scanned copies of two other false instrument one being a bank draft in the sums of US$25,000,000 which purported to be issued by JP Morgan.  It was an admitted fact that this document was scanned into the hard drive of the applicant’s lap top computer on 10 June 2009 and that document contained the same account number as the bank drafts referred to in the charge which was an account which did not exist.  The other document was a Certificate of Ownership which purported to be issued by the Bank of China for a deposit of one thousand metric tons of pure gold.  There was evidence which the judge accepted from an officer of the Bank of China that this was also a false document.

30.  The judge dealt with these two documents in the following way :

“32. Quite apart from this, two further false instruments were extracted from D1’s laptop computer, these being Exhibit P31 and Exhibit P34. P31 is a certificate of ownership issued by the Bank of China for a sum of over US$15 million. P34 is a copy of a bank draft for US$25 million issued by JP Morgan, the account number of this draft being identical to the accounts of the two drafts, Exhibits P3 and P4, an account that does not exist. The mere fact that these two false documents were extracted from D1’s computer I find to be supportive of the prosecution’s contention that D1 was well aware of the invalidity of Exhibits 2,3 and 4”. [Emphasis added]

31.  The period of the conspiracy alleged was between 7 May and 28 July 2009.  We consider that the scanning into the applicant’s lap top computer of another false document bearing the same account number as those presented to JP Morgan on 12 May 2009 was relevant and admissible evidence.  The judge was entitled to use them as being supportive of his conclusion that the applicant knew that the three documents referred to in the charge were false.  The same considerations apply to the Certificate of Ownership.  There was no explanation offered by the applicant as to how these documents came to be in his computer.  He was not asked about them in the video-recorded interview.  He did not give evidence.  This ground of appeal fails.

32.  Nevertheless this evidence standing alone is not sufficient to establish that the applicant knew that the three documents the subject of the charge were false when he attended the meeting on 12 May 2009. 

33.  Given that the basis upon which the judge concluded that the applicant knew that the three documents were false is in error, the appeal must succeed.

34.  Treating the hearing of the application as the hearing of the appeal against conviction is allowed and the conviction quashed and the sentence set aside.